Efficiency of justice is a major component of fair trial and of affective remedies. The three major regional conventions speak of trials ‘within a reasonable time’. The old adage speaks of ‘justice delayed is justice denied’. The ICCPR speaks of a trial ‘without undue delay’. Undue delays are a major problem in the majority of national justice systems and, therefore, it is does not come as a surprise that in recent years at least one third of cases before the European Court deal with ‘reasonable time’. Reasonable time is one of the most frequently invoked components of fair trial and it is likely to remain for a long time on the agenda of supervision mechanisms as parameters defining reasonable time are only gradually being developed and the process of reforming national justice systems to ensure judgements within a reasonable time is a slow one. It should be noted that a person charged with an offence must also have adequate time and facilities to prepare a defence and be given the possibilities of a proper examination of materials and witnesses. Moreover, adequate legal- and translation assistance must be provided. A trial may not be unreasonably short resulting in the parties not having time for adequate preparation and defence. Efficiency of court proceedings is without doubt one of the major challenges of national justice systems today.
The Human Rights Committee stated in General Comment 13 on 13 April 1984:
10. Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place “without undue delay”. To make this right effective, a procedure must be available in order to ensure that the trial will proceed “without undue delay”, both in first instance and on appeal.
The case below gives a good indication of the parameters developed by the European Court in examining compliance with reasonable time requirements. A French haemophiliac claimed compensation as a result of a transfusion of contaminated blood he received in hospital, resulting in him becoming HIV positive. An early decision was needed given the fact that the applicant had only a short time to live. He died but his parents espressed the wish that the proceedings be continued.
X. v. France
European Court of Human Rights
Application No. 18020/91
Judgement of 31 March 1992
Keywords: fair trial - reasonable time
[?]
AS TO THE FACTS
I. The particular circumstances of the case
8. Mr X, a French national born in 1963, died on 2 February 1992 after several stays in hospital. He lived in Paris with his parents. He received a State allowance of 3,000 French francs per month as a disabled adult and did not pursue an occupation.
9. Mr X was a haemophiliac and had undergone several blood transfusions, in particular between September 1984 and January 1985 at the Saint-Antoine hospital in Paris. On 21 June 1985 it was discovered that he was HIV (Human Immunodeficiency Virus) positive.
10. As other haemophiliacs had been infected by HIV, the French Association of Haemophiliacs tried to obtain compensation from the State for the damage suffered by its members who had been so infected. Since it was unable to secure a settlement, the Association recommended to its members that they should institute proceedings before the four-year limitation period expired.
A. The preliminary application to the administrative authority
11. On 1 December 1989 the applicant addressed - as he was required to do under Article R.102 of the Administrative Courts’ Code (see paragraph 23 below) - a preliminary claim for compensation to the Minister for Solidarity, Health and Social Protection. He sought an amount of 2,500,000 francs; he had, he maintained, been infected by HIV as a result of the negligent delay of the Minister in implementing appropriate rules for the supply of blood products. Six hundred and forty-nine other such claims were sent to the Minister.
12. On 30 March 1990, the day before the expiry of the statutory limit of four months (see paragraph 23 below), the Director General for Health rejected Mr X’s claim.
B. The application to the administrative courts
13. Mr X applied for legal aid on 27 April 1990; he was granted it on 8 June. On 30 May he filed an application in the Paris Administrative Court for the annulment of the ministerial decision and for an order requiring the State to pay him compensation of 2,500,000 francs plus statutory interest. Some four hundred applications lodged by persons who were in the same situation were brought before the administrative courts.
They were assigned to the Paris Administrative Court and raised questions some of which were common to all the cases (responsibility of the State in fixing the rules for blood transfusions) and some of which were peculiar to each individual case (date and conditions of infection).
The liability of the State
The public blood transfusion service in France is run by private associations, having none of the prerogatives of a public authority, which are moreover exclusively exercised by the State as holder of the specific powers of health policy (as indicated above); the State is, however, neither prescriber, nor manufacturer, nor supplier of the offending blood products[;] accordingly its liability may be incurred only on account of negligent acts committed in the exercise of its regulatory powers and it is for the applicant to prove that such negligence occurred;
The investigation shows that progress in scientific knowledge concerning HIV, whose first pathological manifestations appeared as early as 1980, from the point of view both of its transmission and of the techniques for its inactivation, was very slow and was the subject of controversy within the scientific community itself; in particular, although the process of heat-treating blood was approved by the American health authorities as early as the beginning of 1983, this technique was developed to combat the hepatitis virus; its effectiveness against HIV remained purely hypothetical for several months; moreover, some researchers feared that the use of this technique would be likely to have an adverse effect on the products’ clotting and auto-immunising property; although such fears proved unfounded, an assessment of the liability incurred must necessarily be made on the basis of the scientific knowledge available at the time; in confining itself to issuing, by way of a circular on 20 June 1983, a recommendation concerning the selection of blood donors, for the information of donors and doctors at transfusion centres about the potential risks of infection, the administrative authority did not therefore commit a negligent act such as to render it liable; the same applies, for identical reasons, to the lack of information furnished to the haemophiliac community concerning the risks to which they were exposed;
However, after this date scientific knowledge constantly progressed; the State, which was moreover an ex officio member of the National Blood Transfusion Foundation, could not fail to have been aware both of such progress and of the spread of the epidemic, and it could not plead the lack of availability of reliable HIV screening tests in order to justify its “wait-and-see” policy once cases of AIDS in the haemophiliac community had revealed the existence of a statistically significant causal relationship between the administration of blood product derivatives and HIV infection; even granted that there remained some uncertainties concerning hypothetical side effects of the heat-treatment technique at the beginning of 1985, the revelation of the scale of the predicted health catastrophe demanded that the distribution of contaminated blood products be halted rigorously and without delay;
The investigation, and in particular the report of the General Inspectorate for Social Affairs, shows that the ministerial authority was informed at the latest and in unequivocal terms on 12 March 1985 of the very strong probability that in the Paris region “all blood products prepared from pools of Parisian donors [were] currently contaminated”; the author of the report appositely noted that the importance of this message did not seem to have been perceived; in failing to adopt immediately a measure prohibiting the distribution of such products, either by legislation or taking appropriate practical measures, the authority responsible for health policy thus committed a negligent act such as to render the State liable; [?]
It follows from all the foregoing that the State is liable in respect of haemophiliacs who were infected by HIV in the course of transfusion of non-heat-treated blood products, during the period of liability defined above, between 12 March and 1 October 1985;
Although the State, as indicated above, is neither the prescriber, nor the manufacturer, nor the supplier of the offending blood products, and although it is for the courts alone to assess whether the blood transfusion centres have incurred liability, nonetheless the task of such centres is to provide a public service, and accordingly there are grounds for the administrative court to order the State to pay compensation for the whole of the damage suffered;
The causal relationship between the damage suffered by Mr [X] and the liability of the State
Even if Mr [X], who received for the treatment of his haemophilia not clotting factors VIII or IX, which it has been established above were negligently distributed, but A cryoprecipitates, may validly claim that the State is liable, the case-file shows that he was found to be HIV positive on 20 March 1985, a condition, which, taking into account an irreducible period of seroconversion, must be regarded as having actually arisen prior to the beginning of the period of the State’s liability defined above, and consequently the submissions of his application must be dismissed;”
[?]
AS TO THE LAW
I. PRELIMINARY OBSERVATION
26. The applicant died on 2 February 1992. In a letter of 6 February his parents expressed their wish to continue the proceedings.
In such circumstances the Commission has sometimes struck out of its list cases concerning compliance with the reasonable time requirement laid down in Article 6 para. 1 (art. 6-1) of the Convention. It has taken the view that the complaint was so closely linked to the person of the deceased that the heirs could not claim to have a sufficient interest to justify the continuation of the examination of the application (reports of 9 October 1982 on application no. 8261/78, Kofler v. Italy, Decisions and Reports no. 30, p. 9, paras. 16-17, and of 13 January 1992 on application no. 12973/87, Mathes v. Austria, paras. 18-20).
The Court, however, in accordance with its own case-law, accepts in the present case that Mr X’s father and mother are now entitled to take his place (see, inter alia, the Vocaturo v. Italy judgement of 24 May 1991, Series A no. 206-C, p. 29, para. 2, the G. v. Italy judgement of 27 February 1992, Series A no. 228-F, p.65, para. 2, and the Pandolfelli and Palumbo v. Italy judgement of 27 February 1992, Series A no. 231-B, p.16, para. 2).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1
27. The applicant complained of the time taken to examine the action which he had brought against the State in the administrative courts. He alleged a violation of Article 6 para. 1 (art. 6-1) of the Convention, according to which: “In the determination of his civil rights and obligations .., everyone is entitled to a ? hearing within a reasonable time by [a] ? tribunal ? .”
A. Applicability of Article 6 para. 1 (art. 6-1)
28. The applicant and the Commission both considered that this provision was applicable in the present case.
29. The Government took the opposite view. In instituting proceedings in the administrative courts, Mr X had challenged the Minister’s delay in using the powers relating to health policy which Articles L. 668 and L. 669, taken together, of the Public Health Code conferred on him. His action had been founded exclusively on the State’s liability for alleged negligence in the exercise of its regulatory authority, which in France fell outside the scope of the principles of the civil law and could not be classified as “civil”. In addition, the legal problems raised by Mr X’s application differed considerably from those in issue in the H. v. France case (judgement of 24 October 1989, Series A no. 162); the general negligence deriving from the rules concerning the supply of blood products could not be regarded as equivalent to the individual negligence of a doctor who had prescribed inappropriate treatment.
30. As the Court has consistently held, the notion of “civil rights and obligations” is not to be interpreted solely by reference to the respondent State’s domestic law and Article 6 para. 1 (art. 6-1) applies irrespective of the parties’ status, be it private or public, and of the nature of the legislation which governs the manner in which the dispute is to be determined; it is sufficient that the outcome of the proceedings should be decisive for private rights and obligations. That is indeed the case in this instance, in view of the purpose of the action, so that Article 6-1 is applicable.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Period to be taken into consideration
31. The period to be taken into consideration began on
1 December 1989 when the applicant filed his preliminary claim with the Minister for Solidarity, Health and Social Protection (see paragraph 11 above). It has not yet ended, as Mr X appealed to the Paris Administrative Court of Appeal on 20 January 1992 (see paragraph 21 above). It has therefore already lasted more than two years.
2. Reasonableness of the length of the proceedings
32. The reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the behaviour of the applicant and the conduct of the relevant authorities. On the latter point, what is at stake for the applicant in the litigation has to be taken into account in certain cases (see, mutatis mutandis, the H. v. the United Kingdom judgement of 8 July 1987, Series A no. 120-B, pp. 59 and 62-63, paras. 71 and 85, and the Bock v. Germany judgement of 29 March 1989, Series A no. 150, pp. 18 and 23, paras. 38 and 48-49).
(a) Complexity of the case
33. According to Mr X, the proceedings did not give rise to any particular difficulty because they concerned typical questions of liability: namely whether there had been negligence, whether there had been any damage and whether there was a causal connection between the two. Furthermore, the administrative court could have given judgement without the report drawn up by the I.G.A.S. (see paragraph 17 above).
34. That is also in substance the Commission’s opinion. In 1989 the relevant authorities had already had available to them for several years all the information which they needed to decide the case without delay.
35. The Government invoked the very exceptional nature of the dispute, which raised not merely the question of the liability of a medical establishment for prescribing treatment, but also the more complex and general problem of the liability of the State for negligence in the exercise of its power to regulate blood products and derivatives. They cited in support of this view the report of the I.G.A.S. That document showed that at the time when Mr X’s application was introduced, and until the completion of the report, the relevant authorities had lacked the information necessary to determine whether, if at all, the State authorities were liable. It demonstrated, by drawing attention to the nature and the number of the problems involved, the complexity of the case. The report pointed out that for a long time and for various reasons the scientific community had been divided on the matter.
36. In the Court’s opinion the case was one of some complexity and investigations could have been necessary to determine the State’s liability and its extent. However, the Government had probably been aware for a long time that proceedings were imminent. It would have been possible for them to obtain much of the relevant information and they ought to have commissioned an objective report on the question of liability immediately after the commencement of the cases against them.
(b). The applicant’s behaviour
37. The Government criticised the applicant for not having produced until 11 July 1990 medical information on his personal condition and for having, prior to that, expressed himself in very general terms, which failed to make clear that he had developed full AIDS. Urgency in this kind of case could not be assessed in the abstract.
Mr X had also made the mistake of opting for a means of redress which necessitated a wide-scale investigation and which went beyond the confines of an action for damages, whereas he could have brought other proceedings, for instance against the suppliers of the contaminated plasma or the establishments where the transfusions had been carried out.
38. The applicant stated in reply that the communication on 11 July 1990 of Professor Frottier’s medical certificate had been intended to confirm an established and undisputed question of fact, namely that he was HIV positive. As soon as he had developed full AIDS in the second half of 1990, he had informed the court and requested it to speed up the examination of his case. It was true that he could have decided to sue the blood transfusion centres in the ordinary courts, but he stressed that his action, like those of the other infected haemophiliacs (see paragraph 13 above), was intended to challenge the State, on which it was considered that responsibility really fell.
39. According to the Commission, Mr X displayed normal diligence and used all the possibilities available to him to galvanise the investigation.
40. The Court notes that already in his memorial of 11 July 1990 the applicant had emphasised the consequences for him of the discovery that he was HIV positive and of the “idea that he was potentially afflicted with an incurable disease”; in his supplementary memorial of 29 October 1990 he had stated that his condition had deteriorated (see paragraph 14 above). Even before the disclosure on 10 September 1991 that he had developed full AIDS (see paragraph 18 above), he had therefore drawn the administrative court’s attention to the worsening of his condition and the immediacy of the grave risks with which he was confronted.
The Court adds that the choice of the means of redress for obtaining compensation fell to the applicant alone.
(c) Conduct of the national authorities
i. The administrative authorities
41. The applicant complained that the relevant Minister had waited until the last day of the four-month prescribed period before rejecting the preliminary application and until 21 February 1991 before filing his memorial in the administrative court.
42. In the Commission’s view it is incumbent on the administrative authorities, when they are the defendants in court proceedings, to take every necessary measure not only to comply with the time-limits laid down, but also to ensure that the dispute is speedily concluded. That had not been the case in this instance. Moreover, the Government’s delay in making public all the details concerning the infection of numerous haemophiliacs in 1984 and 1985 had contributed to prolonging the proceedings.
43. The Government maintained that a party could not be criticised for using the entire period prescribed by statute for replying and that the filing of the ministerial defence memorial had not been indispensable for the continuation of the proceedings.
44. The Court can accept this argument only in so far as the nature and the importance of what is at stake for the applicant permit (see paragraph 47 below).
ii. The judicial authorities
45. The applicant acknowledged that the French administrative courts took on average two years to give judgement and that the examination of his case had not suffered any really abnormal delay. He argued nevertheless that his case - like those of the other infected haemophiliacs - ought to have been dealt with as a matter of urgency because the life expectancy of the persons concerned was of from 16.7 to 28.5 months.
Yet the court had not communicated the memorial of 11 July 1990 to the ministry until 22 August, over a month later. The President-judge-rapporteur accorded the defendant the usual three months to reply thereto, whereas, in view of the nature of the case, he could have reduced this period; he ought to have directed the Minister to submit his memorial once the time-limit had expired, especially as the applicant had requested him to do so in his memorial of 29 October 1990. The court had not ordered additional investigative measures until 5 April 1991, one month and ten days after receiving the Minister’s memorial. Finally, if it considered that it did not have available to it important information the court should have had recourse to the powers of inquiry conferred on it by Articles R. 158 to R.185 of the Administrative Courts’ Code, without its being necessary to wait for the report of the I.G.A.S.
46. In the Government’s contention, it is impossible to establish a rigid link between the length of proceedings and the individual circumstances of a party to them, because that would disrupt the functioning of the national courts. Evidently the courts should proceed more quickly where health and life were at risk, but they could not determine the length of proceedings on the basis of the seriousness of an illness.
Far from disregarding the evolution of Mr X’s condition, the proceedings respected the degree of urgency of the case and did not disclose any failure on the part of the relevant court in this regard. The interval between the filing of the applicant’s initial memorial and its communication to the Minister was explained by the processing of mail, which was slightly less rapid in July and August. The administrative court could not be criticised for failing to shorten the time-limit for replying accorded to the State authorities and for not giving them formal notice that they should produce their statement of defence once that time-limit had expired; on 5 April 1991 it had called for the communication of additional documents as a result of the applicant’s memorial in reply of 3 April 1991. It had waited for the report of the I.G.A.S. to appear in order to draw certain conclusions concerning the case. Moreover, the court had ordered, on 27 May 1991, the second additional investigative measure through administrative channels with a view to speeding up the proceedings and had adopted two further measures on 28 June and 7 November 1991. Finally, it had to deal with a considerable amount of litigation since some four hundred cases had been allocated to it (see paragraph 13 above).
47. Like the Commission, the Court takes the view that what was at stake in the contested proceedings was of crucial importance for the applicant, having regard to the incurable disease from which he was suffering and his reduced life expectancy. He was HIV positive when he lodged his preliminary application with the Minister and instituted proceedings in the administrative court and he had subsequently developed full AIDS (see paragraphs 11 and 18 above). There was a risk that any delay might render the question to be resolved by the court devoid of purpose. In short, exceptional diligence was called for in this instance, notwithstanding the number of cases which were pending, in particular as it was a controversy the facts of which the Government had been familiar with for some months and the seriousness of which must have been obvious to them.
48. Yet the administrative court did not use its powers to make orders for the speeding up of the progress of the proceedings, although from 29 October 1990 it was aware of the deterioration in Mr X’s health (see paragraph 40 above). In particular, it was under a duty, as soon as the case was referred to it, to conduct inquiries into the liability of the State and to enjoin forcefully the Minister to produce his defence memorial or to give judgement without it.
49. Making an overall assessment of the circumstances of the case, the Court finds that a reasonable time had already been exceeded when the judgement was delivered on 18 December 1991; the subsequent proceedings in the Paris Administrative Court of Appeal cannot redress this failure, whatever the outcome as to the merits. There has therefore been a violation of Article 6 para. 1(art. 6-1).
Comment
The requirement of reasonable speed in the proceedings is a standard of particular importance in criminal cases, especially if the defendant is detained on remand. For these cases, Article 6(1) ECHR supplements the requirement of ‘trial within a reasonable time, or release pending trial’ guaranteed by Article 5 (3) ECHR. What constitutes a reasonable length of time may differ depending on the nature of the case. The period to be considered under Article 6 includes not only the time until the trial begins but also the total length of the proceedings, including a possible appeal to a higher tribunal, up to the Supreme Court or other final judicial authority.
The ‘reasonable time’ standard set forth in Article 6(1) ECHR is a subjective one which may differ for civil and for criminal matters. In the context of criminal cases, the Court has established that the time runs from the time ‘official notification [has been] given to an individual by the competent authority of an allegation that he has committed a criminal offence’, or when ‘the situation of the [suspect] has been substantially affected’, the same standard that applies in determining whether one should be considered to have been charged with a criminal offence (Deweer v. Belgium , Application No. 6903/75, Judgement of 27 February 1980, para. 46. and Eckle v. Federal Republic of Germany , Application No. 8130/78, Judgement of 15 July 1982, para. 73. Two of the prosections dealt with in the‘Eckle case had lasted for 20 and 15 years).
In civil litigation, the initiative to start and to pursue proceedings may come from the parties, and the duty of the state to ensure a hearing within a reasonable time is, therefore, less obvious. However, the case-law of the European Court shows many cases of breaches of Article 6 in civil proceedings also even though the standards may differ from one area to another. In this regard, it is important to keep in mind that many cases in which the determination of civil rights and obligations are at issue are handled by tribunals of an administrative character, such as labour courts, zoning boards or other bodies regulating land use, and similar types of organs (e.g. König v. The Federal Republic of Germany , Application No. 6232/73, Judgement of 28 June 1978).
The European Court has rejected governmental arguments that inadequate staffing or general administrative inconvenience is sufficient justification for failure to meet the reasonable time standard (see e.g. De Cubber v. Belgium , Application No. 9186/80, Judgement of 26 October 1984, and Guincho v. Portugal ,Application No. 8990/80, Judgement of 10 July 1984).
The Human Rights Committee has also frequently dealt with complaints regarding undue delays. It also does not accept arguments of overload of the justice system, difficult economic circumstances, etc. In the case of Lubuto v. Zambia (Communication No. 373/89, Views of 31 October 1995), the following was noted:
(§7.3) The Committee has noted the State party’s explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasise that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author’s arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c).
As mentioned earlier, the international supervisory mechanisms have been confronted with reasonable time cases. Can they bring about institutional changes to the extent that the justice system will meet the efficiency requirements to comply with human rights standards? The question has been raised by experts in connection with, for instance, the justice system in Italy. Since the beginning of the 1990s, the European Court and the European Commission have been confronted with hundreds of cases per year regarding reasonable time, better known as the ‘Italian length’ cases. More than ten years later, the flow of cases still does not appear to abate. Measures seem to have been taken, but the requirements are still not being met. While one can see that in the last decade, in several European countries, the efficiency in the justice system has improved enormously in meeting the reasonable time requirement, there is still a long way to go.
Selected additional cases: ECHR: Kudla v. Poland (see below);Kalashnikov v. Russia , Application No. 47095/99, Judgement of 15 July 2002; Loffler v. Austria , Application No. 72159/01, Judgement of 4 March 2004. HRC: Fei v. Colombia , Communication No. 514/192, Views of 4 April 1995;Muñoz Hermoza v. Peru , Communication No. 203/86, Views of 4 November 1988.